IN THE CASE OF:	

		BOARD DATE:	    9 July 2014

		DOCKET NUMBER:  AR20130017129 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, a reevaluation of his medical evaluation board (MEB) and physical evaluation board (PEB) proceedings because they failed to consider his conditions of post-traumatic stress disorder (PTSD), major depression recurrent, and other symptoms as shown in his Department of Veterans Affairs (VA) medical records.

2.  The applicant states all of his conditions were not evaluated correctly.

3.  The applicant provides:

* DA Form 199 (PEB Proceedings), dated 25 January 2012
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* VA Rating Decision, dated 10 August 2012
* miscellaneous in-service and post-service medical documents (some of which are recorded in Spanish without translation)

CONSIDERATION OF EVIDENCE:

1.  His medical records are not available for review.  All medical records considered during the processing of this application were provided by the applicant unless otherwise noted.

2.  He enlisted in the Puerto Rico Army National Guard (PRARNG) on 21 May 1999 and served in military occupational specialty 92Y (unit supply specialist).  His records show he had service in Africa from 5 August 2009 through 10 June 2010.

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 9 July 2010, shows that on 1 July 2010 the applicant underwent a demobilization examination and was found to have a thyroid nodule.  He was referred to a medical treatment facility for further evaluation and treatment.

4.  On 29 July 2011, a Psychiatry Narrative Summary-Medical Evaluation was completed at the Rodriguez Army Health Clinic, Fort Buchanan, Puerto Rico.  This narrative summary was completed after a 60-minute face-to-face interview and reviewing the applicant's military, medical, and psychiatric record as well as his civilian psychiatrist's notes.  The examiner indicated that during his course of treatment for thyroid cancer, the applicant had an onset of behavioral symptoms with depressive mood which upon psychological evaluation were diagnosed as major depressive single episode moderate, with difficulty to determine which symptoms were caused by exacerbation of medical conditions.  He was transferred to the Community Based Warrior Transition Unit (CBWTU), Fort Buchanan.  Recommendation was referral to a PEB.

5.  On 19 September 2011, an MEB Narrative Summary was completed at the time of physical examination which shows the applicant's chief complaint was that he felt "tired and weak."  The examiner indicated the following:

* Diagnosis:  Thyroid cancer, status post total thyroidectomy, 2010.  Failed retention standards in accordance with Army Regulation 40-501, Chapter 3, paragraph 41(e).
* Current Condition:  Thyroid cancer.  Applicant presented with a history of thyroid cancer and is status post total thyroidectomy.  His thyroid function was normal on replacement therapy.
* Impact on Duty:  Required close thyroid function and cancer surveillance every 6 months.  Due to persistent fatigue, the service member stated that he had difficulty lifting, lowering, and carrying more than 50 pounds.
* Recommendation:  Referral to a PEB

6.  His DA Form 3947 (MEB Proceedings), dated 3 November 2011, shows that after consideration of clinical records, laboratory findings, and physical examination, the MEB found that the applicant had the following medical conditions/defects:

* Thyroid cancer, status post total thyroidectomy (failed to meet retention standards)
* Mood Disorder due to a thyroid condition (failed to meet retention standards)
* Hypothyroidism (met retention standards)
* Hypertension (met retention standards)

7.  The applicant agreed with the MEB's findings and recommendation to include the following statements listed on his DA Form 3947:

	a.  In regard to issues relating to fitness for duty and disability compensation, I understand the PEB will consider and review only those conditions listed on the DA Form 3974.

	b.  I certify that this medical board accurately covers all of my medical conditions, that all health records pertaining to my case have been turned over to proper authorities and that I have been counseled in accordance with appendix C-6 [Counseling/MEB], Army Regulation 635-40 (Personnel Separation-Physical Evaluation for Retention, Retirement, or Separation).

8.  On 6 January 2012, his conditions were evaluated by an informal PEB.  On 
25 January 2012, the informal findings of that board were reconsidered based on his appeal.  His DA Form 199 shows the following conditions were reconsidered:

	a.  His major depression secondary to hypothyroidism which manifested in July 2010 during demobilization processing.  In his appeal the applicant reported an increase in sadness, crying spells, lack of motivation, irritability, and anger outbursts.  In December 2011, he had increased suicidal ideations with a plan.  Applicant was hospitalized on numerous occasions (November and December 2010; April 2011; and 8-30 December 2011).  Based on the new information, his clinical picture more closely represented an occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood, and an inability to establish and maintain effective relationships.  He was granted a disability rating of 70 percent.

	b.  Status post total thyroidectomy and radioactive iodine thyroid ablation for thyroid follicular adenocarcinoma, rated analogous to the VA Schedule for Rating Disabilities Diagnostic Codes (VASRD-DC) 7903 in accordance with VASRD 4.20.  Condition manifested in July 2010 during demobilization processing and was found unfitting due to chronic fatigue and inability for sustained Kevlar and Interceptor Body Armor (IBA) wear which was incompatible with the demands of his 92Y duties.  He was granted a disability rating of 10 percent due to fatigability.

	c.  Hypertension individually and in combination with other conditions.  These conditions were found not to be unfitting.

9.  The PEB assigned a combined 70 percent disability rating under the VASRD.  The PEB recommended he be permanently retired due to disability.

10.  On 27 January 2012, he concurred with the findings and recommendation of the informal PEB and waived a formal hearing.

11.  On 3 June 2012, he was retired by reason of permanent disability.

12.  In connection with the processing of this case, an advisory opinion was received from the Legal Advisor, U.S. Army Physical Disability Agency (USAPDA), dated 24 October 2013, which stated that the applicant's military records are reflective of an accurate and complete military disability processing and recommended no changes be made to his military record.  The official provided the following brief history of the applicant's medical disability processing:

	a.  He underwent an MEB on 3 November 2011 which found that his thyroid cancer, status post total thyroidectomy and mood disorder due to a thyroid condition did not met medical retention standards.  His hypothyroidism and hypertension conditions both met medical standards.  There was no history of any combat stressors or possible PTSD diagnoses. His physical profile listed his thyroid and mood disorder conditions as the only conditions that limited his functional and military duties.  On 5 December 2011, he concurred with the MEB findings.

	b.  On 25 January 2012, an informal PEB found him unfit for his thyroid and major depressive conditions and awarded him a combined 70 percent permanent disability rating (70 percent for depression and 10 percent for post thyroidectomy).  On 27 January 2012, the applicant concurred with the PEB's findings.

	c.  On 10 August 2012, the VA rated the applicant for his depressive disorder at 70 percent and denied compensation for PTSD or Traumatic Brain Injury (TBI).

	d.	The applicant did not provide any new evidence of any additional conditions that were present during his MEB/PEB processing that could have been considered to be unfitting for continued military duties.  Military compensation is only authorized for unfitting conditions that arise while the individual is in the military.  Even if an additional diagnosis of PTSD had been present at the time of his retirement, and found to be unfitting, the disability rating under VASRD 4.130 would not have been increased as the disability ratings for mental health disorders are based on the totality of the social and industrial impairments, no matter how many mental disorders are considered for rating purposes.

13.  On 25 October 2013, the advisory opinion was forwarded to the applicant for acknowledgement/rebuttal.  No response was received as of 25 November 2013.

14.  The applicant provides the following evidence:

	a.  An undated DD Form 2766 (Adult Preventive and Chronic Care Flowsheet) which lists all of his medical conditions to include major depression, recurrent and PTSD (as of 9 December 2010).

	b.  A Neuropsychological Evaluation Report which shows the results of examinations conducted on 16 and 30 August 2011 by a Clinical Psychologist specializing in Neuropsychology.  He noted at the time that the applicant's emotional suffering was more prominent in his presentation and was affecting his daily living activities especially with the attention and memory function.  Cognitive areas with more compromise included attention, verbal memory and mental processing speed.  The applicant needed continued psychiatric and psychological intervention as well as pharmacological treatment.  He recommended an ophthalmic and audiological evaluation.

	c.  Medical history notes recorded on 22 November 2010 at the Dwight D. Eisenhower Army Medical Center, Fort Gordon, GA.  The medical notes show the applicant was referred by the PTSD clinic after complaining of depression and anxiety.  He was diagnosed with suicidal ideations upon admission.  His discharge notes, dated 8 December 2010, show in the "Hospital Course" section that the applicant had been on a small dosage of lamicatal, propranolo, and trazodone prescribed by psychiatrist in TBI clinic for reported PTSD-like symptoms and poor sleep.  He was referred to an MEB secondary to his psychiatric conditions.

	d.  His VA rating decision, dated 10 August 2012, which shows he was evaluated for the following medical conditions/injuries and assigned the indicated disability rating:

* major depressive disorder - 70 percent
* obstructive sleep apnea - 50 percent
* migraine including migraine variants with tension headaches - 30 percent
* lumbar strain (lower back injury/condition) - 20 percent

Additional conditions rated at 10 percent:

* right knee patellar tendinitis 
* melasma (rash on face)
* hypothyroidism, status post malignant neoplasm of the thyroid (thyroid cancer, nontoxic multinodular goiter, and fatigue)
* allergic rhinitis (nasal polyps)
* gastroesophageal reflux disease (GERD, heartburn, and abdominal pain)
* chronic sinusitis 
* scar, status post total thyroidectomy
* left ankle joint fracture (left sprain ankle)
* hypertension
* biepharitis
* PTSD
* TBI

	e.  Medical documents transcribed in Spanish without English translations.

15.  The VA denied his claim for service connection for PTSD and TBI.  The VA examiner noted:

	a.  In regard to his PTSD compensation claim, they acknowledged he experienced a stressful event in service or fear of hostile military or terrorist activity.  However, the service treatment records (to include copies submitted by the applicant) for the period of service from 31 January 2001 to 16 June 2001, from 11 February 2003 to 21 May 2003, and from 12 October 2006 to 1 March 2008, and the ARNG from 5 July 2009 to 3 June 2012, reflected complaints, treatment, or a diagnosis similar to the issue claimed; however, there was no current diagnoses of PTSD.  Outpatient records from VA Mayaguez (to include VA San Juan) from 1 October 2008 to 26 June 2012, were silent for diagnoses of PTSD.

	b.  In regard to his TBI claim, that while the applicant's service treatment record reflected complaints, treatment, or a diagnosis similar to that claimed, the medical evidence supports the conclusion that a persistent disability was not present in service.  According to service records the applicant suffered head trauma on 27 January 2010 when a pipe fell, but there was no loss of consciousness, no amnesia, and no psychiatric symptoms or focal neurological signs.  Neurological examination was normal.  Further, the applicant was seen by a VA psychiatrist on 24 January 2012 with no findings of PTSD or TBI.  The psychiatric examination showed normal memory and depression with insomnia.

16.  The VA assigned a 70 percent combined service connected disability rating for major depressive disorder, recurrent, moderate to severe (as claimed as adjustment disorder with depressed mood, anxiety disorder, memory lapses or loss, and insomnia).  As of 4 June 2012, he had a combined disability rating of 100 percent.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

	a.  There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

	b.  This regulation defines "physically unfit" as unfitness due to physical disability when the unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  

	c.  Appendix B provides guidance on the Army's application of the VASRD.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

18.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.

19.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of any VA rating does not establish an error or injustice by the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his PTSD, major depression recurrent, and other medical conditions documented by the VA were not properly evaluated during his MEB/PEB processing.

2.  The applicant was diagnosed with thyroid cancer in 2010 and based on his medical condition he was referred to an MEB.   The MEB consider his thyroid cancer (post total thyroidectomy), mood disorder due to thyroid condition, hypothyroidism and hypertension.  His thyroid cancer and mood disorder were found to be unfitting and he concurred with the findings and recommendation of his MEB proceedings.  Further, he acknowledged that he understood that the conditions listed on his MEB were the only conditions that would be considered by the PEB.  Subsequently, an informal PEB found his mood disorder to be a major depression secondary to hypothyroidism.  This condition and his status post total thyroidectomy prevented the reasonable performance of his duties.  He was found to be physically unfit for further military service.  The PEB rated his conditions under the VASRD at combined rating of 70 percent and recommended a permanent disability retirement.  Again, he concurred with the findings and recommendation of the PEB.

3.  After his disability retirement the applicant underwent a VA physical examination in which he was evaluated for several medical conditions not evaluated during his physical disability processing to include PTSD and TBI.  
The VA denied his PTSD and TBI claim but granted him a 100 percent service connected combined disability rating, effective 4 June 2012.

4.  The fact that the applicant has several medical conditions that were not evaluated during his medical processing is not in question; however, the Army rates only conditions that are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  Based on the available records, his other medical conditions met medical retention standards and were not determined to be unfitting; therefore, not considered by either the MEB or PEB.

5.  It is acknowledged that medical conditions may worsen over time; however, the Army's rating is dependent on the severity of the unfitting condition at the time of separation.  The VA has the responsibility and jurisdiction to recognize any changes in conditions over time by adjusting a disability rating.

6.  Lacking evidence to the contrary, the applicant's physical disability evaluation was conducted in accordance with law and regulations and he concurred with the recommendation of the PEB.  There is no error or injustice in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   X_____   ___
               CHAIRPERSON

I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20130017129



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ABCMR Record of Proceedings (cont)                                         AR20130017129



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